B.Rama Swamy, vs Kairamkonda Kishan,
2024 Latest Caselaw 4184 Tel

Telangana High Court

B.Rama Swamy, vs Kairamkonda Kishan, on 24 October, 2024

     THE HONOURABLE SRI JUSTICE K.SURENDER
                             AND
THE HONOURABLE SRI JUSTICE ANIL KUMAR JUKANTI

           CRIMINAL APPEAL No.590 OF 2015

JUDGMENT:

(per Hon'ble Sri Justice K. Surender)

1. The appellant is the de facto complainant and

brother of the deceased. Aggrieved by the acquittal of the

respondents/accused Nos.1 and 2, for the offence under

Section 302 of Indian Penal Code, he has preferred the

present appeal.

2. Heard learned counsel for the appellant/de facto

complainant and learned Additional Public Prosecutor for

the respondent No.3-State. Perused the record.

3. According to the prosecution, accused No.2 and

the deceased were married nearly 30 years prior to his

death. According to PW.1/appellant, the deceased, who is

his brother, was killed by accused No.2 in conspiracy with

accused No.1, due to the illicit relationship between them

and to avoid interference by the deceased. According to

prosecution case, the accused Nos.1 and 2 and the

deceased were consuming toddy in the house of deceased.

After consuming toddy, both accused Nos.1 and 2

murdered the deceased by hitting him on his head with

blunt object, which is stick, marked as MO.1. The said

MO.1 was seized pursuant to the confession of accused

No.1.

4. The police conducted scene of offence panchanama

and also concluded the inquest proceedings. Thereafter,

the dead body was sent for postmortem examination.

5. The police after completion of investigation filed

charge sheet against accused No.1 for the offence under

Section 302 of IPC and Section 3(1)(x) of the Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Act,

1989 SC/ST (POA) Act and against accused No.2 for the

offence under Section 302 r/w 34 of Indian Penal Code.

Charges were framed for the said offences by the learned

Sessions Judge. During the course of trial, the prosecution

relied on the evidence of PWs.1 to 9 and also Exs.P1 to

P15 in support of its case. Further, the material objects

MOs.1 to 3 were also brought on record during the course

of trial.

6. The learned Sessions Judge found that the case is

one of the circumstantial evidence and the prosecution

has failed to prove that it was accused Nos.1 and 2, who

had caused injuries on the head of the deceased,

consequent to which, the deceased died.

7. While dismissing the Sessions Case and acquitting

the accused, learned Sessions Judge gave the following

reasons:

i) Accused No.2 and the deceased were divorced

seven (7) years prior to the death of the

deceased, as such, the motive to avoid

interference of the deceased in the illicit

intimacy of accused Nos.1 and 2 cannot be

believed.

ii) PW.2 is the eye witness, who turned hostile to

the prosecution case.

iii) PW.3 is the other witness who stated that she

found accused Nos.1, 2 and deceased

consuming toddy and on the next day, the

deceased was found dead in his house.

iv) Though it is the case of the prosecution that

accused Nos.1, 2 and the deceased consumed

toddy after which he was assaulted, however,

at the scene of offence, no toddy bottles were

found and further in the postmortem

examination, Doctor did not find any liquor or

toddy smell in the stomach contents. He only

found semi digested food. Accordingly medical

evidence also does not support the

prosecution case.

v) MO.1/Stick which was seized was not blood

stained and no reasons are given by the

prosecution for MO.1 not being blood stained,

though the allegation is that deceased was

beaten with MO.1.

8. The learned counsel appearing on behalf of the

appellant would submit that accused Nos.1, 2 and

deceased were found consuming toddy by PW.3 and it is

for accused to explain as to how the deceased died. The

said explanation is warranted under Section 106 of Indian

Evidence Act, as the burden shifts on to accused No.2

since she is his wife.

9. Having gone through the record, PW.1 has

specifically stated that seven years prior to the incident,

accused No.2 and the deceased was divorced. Even,

during the course of 313 Cr.P.C., examination, accused

No.2 stated that she divorced the deceased six or seven

years prior of the incident and they are living separately.

None of the witnesses stated that after divorce, the

deceased and accused No.2 were living together.

10. Since the deceased and accused No.2 were

divorced, the question of the deceased interfering with the

life of accused No.2 that too on the ground that she was

having an affair with accused No.1, does not arise. Once

the couple have separated, interference by the deceased in

the personal life of accused No.2 or accused Nos.1 and 2

committing murder of the deceased on the ground that he

was interfering with their illicit relationship, does not arise

and is highly improbable.

11. In cases of acquittal, the Hon'ble Supreme Court in

Ravi Sharma v. State (Government of NCT of Delhi)

and another 1, held that while dealing with an appeal

against acquittal, the appellate court has to consider

whether the trial Court's view can be termed as a possible

one, particularly when evidence on record has been

analyzed. The reason is that an order of acquittal adds up

to the presumption of innocence in favour of the accused.

Thus, the appellate court has to be relatively slow in

reversing the order of the trial court rendering acquittal.

12. In Ghurey Lal v. State of Uttar Pradesh 2 the

Hon'ble Supreme Court after referring to several

Judgments regarding the settled principles of law and the

(2022) 8 Supreme Court Cases 536

(2008) 10 Supreme Court Cases 450

powers of appellate Court in reversing the order of

acquittal, held at para 70, as follows:

"70. In the light of the above, the High Court and other appellate Courts should follow the well-settled principles crystallized by number of Judgments if it is going to overrule or otherwise disturb the trial court's acquittal:

1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.

A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when:

i) The trial court's conclusion with regard to the facts is palpably wrong:

ii) The trial court's decision was based on an erroneous view of law;

iii) The trial court's judgment is likely to result in "grave miscarriage of justice";

iv) The entire approach of the trial court in dealing with the evidence was patently illegal;

v) The trial court's judgment was manifestly unjust and unreasonable;

vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc.

vii) This list is intended to be illustrative, not exhaustive.

2. The appellate court must always give proper weight and consideration o the findings of the trial court.

3. If two reasonable views can be reached__ one that leads to acquittal, the other to conviction __the High Courts/appellate courts must rule in favour of the accused."

13. There are no compelling reasons to interfere with

the findings of the learned Sessions Judge while acquitting

the accused.

14. Accordingly, the appeal filed by the State fails and

is hereby dismissed.

_________________ K.SURENDER, J

__________________________ ANIL KUMAR JUKANTI, J Date: 24.10.2024 mmr